To effectively govern Delhi, follow the Transaction of Business Rules

Until these 1993 rules are modified, or the individual matters are decided by a bench of the apex court, the elected government cannot presume to possess powers to make postings and transfers; status quo has to prevail until modified by the competent authority - the ministry of home affairs.

On July 4, a five-judge constitutional bench of the Supreme Court delivered three independent judgments, bringing finality to the interpretation of Article 239AA of the Constitution. The genesis for seeking an interpretation of the constitutional amendment emanated from a two-judge bench of the Supreme Court while it was hearing appeals questioning the fallout of the 2016 judgment of the Delhi High Court. The bench felt that the appeals involved substantial questions related to Article 239 AA and a constitutional bench should first interpret those matters; only then could the individual appeals be decided by appropriate benches of the apex court.

The three concurring judgments have nowhere alluded to specific areas of conflict, disagreement or doubts raised in the pending appeals. Drawing any inference on the basis of the judgments of a constitutional bench, which includes contentious issues relating to services (loosely called postings and transfers of officers), and control over the anti-corruption branch, would be premature.

It is interesting that all three judgments have referred in extensive detail to the Transaction of Business Rules (TBR), 1993, issued by the President of India (in this case the ministry of home affairs), setting out the processes to be followed by the chief minister, the council of ministers and officers while transacting government business. Nowhere in the three judgments has the jurisdiction of the central government to exercise this authority been questioned.

On the vexed question of “services”, the judgment of Justice Y Chandrachud makes the most direct reference to rule 46 of the TBR, 1993, under which the Lieutenant Governor (LG) has been assigned powers and functions for regulating the conditions of service of officers, starting with a consultation with Union Public Service Commission.

The 1993 rules specifically refer to the responsibilities of the chief secretary, home secretary and secretary (lands). A subsequent TBR of 2015, which requires officers’ postings to be done with the approval of the LG, has not been mentioned.

In the light of the constitutional bench having given the political executive authority to decide and implement what it decides as necessary for the administration of the city, (on the analogy of aid and advice but after informing the LG without exception), there is a perception that this automatically includes the power to make postings and transfers of officers. But therein lies a mistake of interpretation.

Until the TBRs are modified, or the individual matters are decided by a bench of the apex court, the elected government cannot presume to possess powers to make postings and transfers; status quo has to prevail until modified by the competent authority, which is the ministry of home affairs.

To the general public, this may appear incongruous.

How can an elected government have the power to pass laws, approve the annual financial budget and introduce new schemes and projects, function if it cannot post officers without the LG’s approval? That, however, happens to be the extant position by virtue of several rules enunciated in the TBR, which have been given due sanctity by the three judgments.

By giving such overriding importance to the TBRs the judges have made the fulfilment of specific responsibilities by the CM, the council of ministers, the chief secretary and, in particular, the secretaries of the finance and law departments binding.

There is now a greater need to ensure that the official positions are filled by men and women who carry the courage of conviction and the acumen to understand and execute their responsibilities as provided in the TBRs. Indeed those Rules have been conferred constitutional sanctity by the three judgments and can no longer be ignored or obfuscated by individual players as either being old or a piece of antiquated subordinate legislation.

They have assumed a fresh standing and importance hitherto unknown.

It is open to the central government to provide for the exercise of more authority to the chief minister but equally, nothing precludes that the government from awaiting the outcome of individual appeals, which have still to be decided by the Supreme Court.

But whatever may or may not be done, make no mistake no one will tinker with the 1993 TBR, given the support they have been accorded by the constitutional bench.

In following them scrupulously lies the answer to effectively administer Delhi.